Australian Competition and Consumer Commission v Showmen's Guild of Australasia
[2005] FCA 1234
•31 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SHOWMEN'S GUILD OF AUSTRALASIA [2005] FCA 1234
CONTEMPT – misuse of document produced for inspection following discovery
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SHOWMEN’S GUILD OF AUSTRALASIA & ORS
NSD 172 OF 2004
GRAHAM J
31 AUGUST 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 172 OF 2004
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT
AND:
THE SHOWMEN’S GUILD OF AUSTRALASIA
FIRST RESPONDENTLEWIS ERIC OSBORNE
SECOND RESPONDENTJAMES GAVIN MARSHALL
THIRD RESPONDENTMARSHALL AMUSEMENTS PTY LTD
FOURTH RESPONDENTPETER JAMES SHORT
FIFTH RESPONDENTSPRY AMUSEMENTS PTY LTD
SIXTH RESPONDENTGEORGE PINK
SEVENTH RESPONDENTAARON PINK
EIGHTH RESPONDENTBRODERICK WILLIAM PAVIER
NINTH RESPONDENTDOREEN GLADYS BROWN
TENTH RESPONDENTYVONNE CLAIRE SEYMOUR
ELEVENTH RESPONDENT
JUDGE:
GRAHAM J
DATE OF ORDER:
31 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The First Respondent by its committee members, officers, servants or agents be restrained from using for any collateral purpose a document or information derived from a document provided to the Showmen's Guild pursuant to an order made in these proceedings until such time as the Order ceases to apply by operation of Order 15 rule 18 of the Federal Court Rules.
The Second Respondent, Lewis Eric Osborne, be restrained from using for any collateral purpose a document or information derived from a document provided to the First Respondent pursuant to an order made in these proceedings until such time as the Order ceases to apply by operation of Order 15 rule 18 of the Federal Court Rules.
The First and Second Respondents, being the Respondents to the amended notice of motion, pay the costs of the Applicant of and incidental to the notice of motion filed 29 June 2005 and of the amended notice of motion filed 28 July 2005 to be agreed or assessed upon an indemnity basis.
Pursuant to Order 62 rule 3(2) of the Federal Court Rules the said costs be paid forthwith, notwithstanding that the proceeding is not concluded.
Pursuant to Order 62 rule 3(3) the Applicant may have its bill of costs taxed forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 172 OF 2004
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
THE SHOWMEN’S GUILD OF AUSTRALASIA
FIRST RESPONDENTLEWIS ERIC OSBORNE
SECOND RESPONDENTJAMES GAVIN MARSHALL
THIRD RESPONDENTMARSHALL AMUSEMENTS PTY LTD
FOURTH RESPONDENTPETER JAMES SHORT
FIFTH RESPONDENTSPRY AMUSEMENTS PTY LTD
SIXTH RESPONDENTGEORGE PINK
SEVENTH RESPONDENTAARON PINK
EIGHTH RESPONDENTBRODERICK WILLIAM PAVIER
NINTH RESPONDENTDOREEN GLADYS BROWN
TENTH RESPONDENTYVONNE CLAIRE SEYMOUR
ELEVENTH RESPONDENT
JUDGE:
GRAHAM J
DATE:
31 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
What is before the court today is an amended notice of motion filed 28 July 2005 in proceedings in which Australian Competition and Consumer Commission (“ACCC”) is the Applicant and there are 11 Respondents, including Showmen's Guild of Australasia (“the Showmen’s Guild”) as the First Respondent and Lewis Eric Osborne as the Second Respondent.
The amended notice of motion charges the First Respondent with contempt in two respects and the Second Respondent with contempt in one respect. The relief sought in the motion is that there be findings of guilt in respect of the three charges; that there be injunctive relief; that the court require the First Respondent to pay such pecuniary penalty as the court may determine and orders in respect of costs.
It would appear that on 28 July 2004 Britt-Marie Osborne, a director of Osborne's Amusements Pty Limited and Osborne Fairground Attractions Pty Limited, emailed to the ACCC a document comprising two pages which were subsequently identified for discovery purposes as ACCC.006.0076 and 0077.
The motion is concerned with the alleged misuse of the document 0076 and the contents of it. The document purports to summarise attendances at the Newcastle Show in the years 1999 to 2004 inclusive and monetary amounts, presumably representing the gate takings in each of those years.
On 2 April 2005 Mr John Davis, representing the Showmen’s Guild, revealed the contents or some parts thereof of the document 0076 to the Wauchope Show Society. Later, on 7 April 2005, the Second Respondent appears to have forwarded by facsimile a copy of the document 0076 to the then president of the Townsville Pastoral Agricultural Industrial Association (“the Townsville Show Society”).
Before the Second Respondent sent a copy of the document to the Townsville Show Society he sought and obtained advice from a Mr Kelsey of Gadens Solicitors in Melbourne. There are competing versions of the advice which was given. It may be that the Second Respondent misunderstood marginally what Mr Kelsey said. Mr Kelsey's advice itself may have been marginally deficient. In any event, I think it can fairly be said that when the Second Respondent forwarded by facsimile a copy of the document 0076 to the Townsville Show Society he did not understand that he was breaching any obligation to the Court protecting the confidentiality of the document.
It appears that the Respondents to whom I have referred gained access to the document 0076 in September 2004. On 3 September 2004 access has been granted to the Applicant's discovered documents and the document 0076 was included amongst those to which access was given.
I am satisfied that the source of the document which was forwarded by facsimile was not the discovered copy of the document, but rather a copy which was exhibited to an affidavit of Britt-Marie Osborne sworn 10 August 2004, the relevant document being Exhibit BNO-1 to that affidavit.
Senior counsel for the Respondents to the contempt motion has indicated that the First Respondent pleads guilty to the first charge and to the second charge as pleaded in the amended statement of charge annexed to the amended notice of motion and, further, that the Second Respondent pleads guilty to the charge against him as pleaded in the same amended statement of charge.
In an affidavit sworn 22 August 2005, the Second Respondent, who was then the immediate past president of the Showmen’s Guild and authorised to make the affidavit on its behalf, apologised unreservedly to the Court for any wrongdoing on his part or on the part of the Showmen’s Guild:
“14.I apologise to the Court unreservedly for any wrong-doing on my part in sending a copy of the document to Mr Ryland and I offer an undertaking to the Court that I will not use any document or any information in any document provided to myself or to the Guild pursuant to any order made in the present proceedings for any collateral purpose for such period as the Court may think fit.
15.The Guild also apologises unreservedly for any wrong-doing on its part as a consequence of my conduct or the conduct of Mr Davis in his reference to the contents of the document referred to in the affidavit of John Graham sworn on 22 July 2005 and offers an undertaking to the court that it, by itself its committee members, officers, servants or agents will not use any document or any information in any document provided to the Guild or any of its officers pursuant to an order made in the present proceedings for any collateral purpose for the same period.”
In the light of the admissions of guilt and the apologies extended to the Court by the contemnors the question is relevantly whether or not it is appropriate to impose any penalty on either the First or the Second Respondent.
When the matter resumed after the luncheon adjournment, senior counsel for the Applicant informed the Court that the parties proposed that orders be made by consent subject to the agreement of the Court in terms of paragraphs 1-5 inclusive of the Applicant's amended notice of motion, i.e. that there should be no order in respect of any penalty and that the Respondents should be ordered to pay the Applicant's costs to be agreed or assessed on an indemnity basis.
In Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 493 Barwick CJ said:
“… the imposition of a fine is not usually a means of coercing performance of an order or an undertaking or of compensating an aggrieved party for a breach of it. The fine is, of its very nature, punitive, better fitted for an occasion of criminal contempt where elements of contumacy or of defiance of the Court are present …”
In my opinion it would be inappropriate in the circumstances of this matter, and in light of the parties' proposed consent orders, to impose any penalty upon the contemnors. I am of the opinion that the appropriate order for costs is, however, the one to which the parties have indicated their consent. I could say more about that matter but in the light of their consent will refrain from so doing.
Accordingly, I find the First Respondent guilty of contempt of this Court for breaching an implied undertaking given by it to this Court and to the Applicant in that the Showmens Guild, by the conduct of Lewis Eric Osborne acting on its behalf as its president, has used for a collateral purpose a document or a copy of a document that was provided to the Showmen’s Guild by the ACCC pursuant to orders made by Justice Hill on 3 August 2004 and 5 August 2004.
I find the First Respondent guilty of contempt of this Court for breaching an implied undertaking given by it to this Court and to the Applicant in that the Showmen’s Guild, by the conduct of John Davis acting on its behalf as a duly authorised delegate, has used for a collateral purpose the information derived from a document or a copy of a document that was provided to the Showmen’s Guild by the ACCC pursuant to orders made by Justice Hill on 3 August 2004 and 5 August 2004.
I find the Second Respondent guilty of contempt of this Court for breaching an implied undertaking given by Lewis Osborne to this Court and the ACCC in that Lewis Osborne has used for a collateral purpose a copy of a document that was provided to him by the ACCC pursuant to orders made by Hill J on 3 August 2004 and 5 August 2004.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 30 November 2005
Counsel for the Applicant: I D Faulkner SC Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First and Second Respondents: J C Kelly SC Solicitor for the First and Second Respondents: Gadens Lawyers Date of Hearing: 31 August 2005 Date of Judgment: 31 August 2005
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